US v. Schay

Decision Date17 September 1990
Docket NumberCiv. No. 89-209,89-633.
Citation746 F. Supp. 877
PartiesUNITED STATES of America; Melvin White, Plaintiff, v. Natalee SCHAY; B. Jeffery Pence, Defendants.
CourtU.S. District Court — Eastern District of Arkansas

P.A. Hollingsworth, Little Rock, Ark., for Melvin White.

Christopher T. Shaheen, U.S. Dept. of Justice, Civ. Rights Div., Housing & Civil Enf. Section, Washington, D.C., Michael T. Booker, Rose Law Firm, Little Rock, Ark., for U.S. (govt.)

Buddy Sutton, James W. Moore, Friday, Eldredge & Clark, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

I. Statement of the Case

On March 24, 1989, plaintiff, Melvin White, brought suit against defendants, Natalee Schay and B. Jeffery Pence, under the provisions of 42 U.S.C. § 1982 and Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act), 42 U.S.C. § 3601 et seq., alleging that the defendants discriminated against him because of his race by refusing to lease or rent to him certain real property owned by defendant, Pence, located in Little Rock, Arkansas. On August 2, 1989, the United States also brought suit against the defendants under the provisions of § 812(o) of the Fair Housing Act, as amended, 42 U.S.C. § 3612(o), seeking a declaration that the alleged acts of the defendants violated applicable provisions of the Fair Housing Act, and an injunction enjoining the defendants from further violations. Additionally, the United States prayed for damages in behalf of Melvin White.

Because Melvin White, a black lawyer, was, at the time of the incident which is the subject matter of this lawsuit, a law clerk for Chief Judge G. Thomas Eisele, the other Eastern District Judges who office in the same building with Judge Eisele, recused and the matter was assigned to the writer of this opinion. The case was tried in Little Rock to a six-person jury on June 27-29. The testimony in the case consumed over two days, and, at the close of the evidence, the jury was instructed and permitted to retire to deliberate. The jury returned with a verdict in favor of the defendants after less than 30 minutes of deliberation.

II. Facts

A great deal of the testimony elicited at the trial was not in dispute. Mr. White had been reared in Crawfordsville, a small town in Crittenden County in the Mississippi River delta region of Eastern Arkansas and had attended and graduated from public schools in that county. After graduation, at the age of 18, he enlisted in the United States Air Force and spent four years and nine months in the service. After discharge from the Air Force, he attended and graduated in 1984 with honors from Morehouse College in Atlanta. He then was admitted to and graduated from the University of Virginia Law School. In August of 1987, he was hired as a law clerk by Chief Judge G. Thomas Eisele, United States District Court, Eastern District of Arkansas, where he was employed at the time of this incident on September 29, 1988.

Early on the morning of that date, he saw an advertisement in the Arkansas Gazette newspaper offering to rent or lease a three-bedroom home. Since Mr. White was interested in changing his residence in Little Rock, he answered that advertisement by phone and made an appointment to visit the property located at 211 Linwood Court in the Pulaski Heights addition to Little Rock, admittedly one of the more desirable residential locations in that city. He talked with defendant, Schay, who agreed to meet him at the residence at 6:45 p.m. that evening. He says that he gave her during that telephone conversation his name and telephone number and that Ms. Schay told him she would call him if anything changed. At the trial, Ms. Schay did not remember, one way or the other, whether she had received that information or made that statement.

In any event, shortly before 6:45 p.m. on that date, as agreed, Mr. White journeyed to the residence. As he approached the residence in his automobile, Ms. Schay was waiting for him in front of the house. She walked to his car and asked him if he was Melvin White. When he replied in the affirmative, she told him without further elaboration that the house had already been rented. Mr. White asked if he would, nevertheless, be permitted to walk through the house to see what he was missing. He said that she was very cordial during that visit, and after he viewed the house, he told her that it was "exactly what he wanted" and asked her if she had similar properties available. She told him that she had an apartment available for rent in Jacksonville, Arkansas, near the Little Rock Air Force Base, but Mr. White was not interested since he worked in downtown Little Rock.

The evidence showed that Ms. Schay, who resided a couple of blocks from the 211 Linwood Court property, was the rental agent for defendant, Pence, and was responsible for the rental or leasing of approximately 20 separate properties owned by him, with substantial authority in that respect. She was paid a commission equal to 10% of the first month's rent on any of Pence's property she was responsible for renting.

Mr. White immediately suspected after the incident on the evening of September 29 that he was being denied the opportunity to rent the house because of his race, and doubted that it had been rented just prior to his arrival as claimed by Ms. Schay. On the morning of the following day at approximately 8:00 a.m., he discussed his experience of the previous evening with two of his co-workers in Judge Eisele's office and asked that they telephone the number listed in the advertisement and inquire about the house. It appears that at least two of the co-workers made such calls. At approximately 8:30 a.m., while Mr. White was engaged in a court hearing, he received word in the courtroom that his co-workers had called and had been told that the house was available. He immediately asked Judge Eisele for permission to leave the court hearing so that he could investigate the matter and, if necessary, file a formal complaint of discrimination. He learned that calls had in fact been made by his co-workers, including Jim Miskievicz, also a law clerk for Judge Eisele, and a witness at the trial, who testified that he had, on the morning of September 30 at approximately 8:00 a.m. called the number listed in the newspaper advertisement and had talked with a woman named Natalee who advised that the property was still for rent. After leaving Judge Eisele's court Mr. White proceeded to "City Hall" to file a formal complaint of discrimination. On the way back to his office he visited the office of a friend, Clarence Roby, to discuss the incident. Mr. Roby testified that he also telephoned the number listed in the newspaper advertisement and was also told that the house was still available. Shortly after that, Mr. White telephoned Ms. Schay and without identifying himself asked if the house was still for rent and was told that it was. The evidence is uncontroverted that it remained available for rent until November 3, 1988, when it was finally rented to a white couple after the rent was lowered by Ms. Schay from $675.00 per month to $600.00 per month. She testified that the rent was lowered because the house had been vacant since June.

The evidence set forth above, with the minor differences noted, was not controverted by the defendants. However, Ms. Schay said that she had rented the home to either a couple or a person (it is not clear which she believed it to be) who visited the premises immediately before Mr. White arrived. She says that she then promised them (or him) that she would hold the property and that they were to go by Mr. Pence's office1 the first thing the next morning to pay the deposit and sign the lease. While her version of what happened after that point has varied from time to time during the progression of this case,2 her testimony reflected that she now seems to believe that the man who agreed to rent the property on the evening of September 29 was Frank Daley. She now says that Mr. Pence called her sometime around 9:00 a.m. on September 30, and advised her that the person who had agreed to rent the property had not appeared to pay the deposit and sign the lease, so she should continue her attempts to rent it. She now says that she may have received a couple of calls before Mr. Pence's call and that, if she did, she would probably have told them that the property had been rented but that the callers would have been told in any telephone calls made after Mr. Pence's call that the property was still for rent.

Defendants produced Mr. Frank Daley who testified that he had been a Little Rock fireman for 14 years prior to his dismissal from the Little Rock Fire Department in September of 1987 after he had been disciplined for dishonesty and making false statements defaming the fire department. Mr. Daley, whom the captain of the Little Rock Fire Department testified had a bad reputation for truthfulness and who "lacked the ability to tell the truth" testified that on approximately June 29 or 30, 1989, he read an article in the newspaper about the Melvin White lawsuit which had been filed in March. The article apparently described the events and the claim of the defendants that the property had not been offered to Mr. White because defendants believed that it had been rented the previous evening by an unnamed and unknown individual. He says that he realized that he was probably that individual so he called Ms. Schay and Mr. Pence the next day. Mr. Pence visited him and took him by the subject property. He gave a statement to Mr. Pence at the time claiming that he had, in fact, agreed to rent the property the evening of September 29 because he and his wife were "breaking up" at that time and she had told him to leave their home. He says that later that evening he and his wife discussed the matter and had "made up" so he no longer needed the property. He failed to advise either Schay...

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